WPIC 115.51.01 Intimidating a Witness—Threat to Current or Prospective Witness—Elements

If the defendant is charged with intimidating a former witness, rather than a current or prospective witness, use WPIC 115.51 (Intimidating a Witness—Threat to Former Witness—Elements) instead of this instruction.

Use bracketed material as applicable. With this instruction, use WPIC 115.52 (Intimidating a Witness—Threat—Definition) and WPIC 115.53 (Intimidating a Witness—Current or Prospective Witness—Definition). WPIC 118.16 (Official Proceeding—Definition) may also be used as applicable.

The instruction is drafted under the assumption that only one of the alternatives in element (1) will be used. If, in a given case, more than one alternative needs to be included in element (1), then the instruction should be revised to follow the format for a to-convict instruction involving alternative means. See WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).

For a discussion of the phrase “this act” in element (2), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.72.110(1). The instruction has been revised for this edition to comport with statutory language. For the change to the instruction, the WPI Committee removed “other” from the bracketed phrase “[influence the testimony of that person]” under the first element. No substantive change is intended.

The statute “criminalizes threats made to induce a person not to report a crime and, necessarily, threats made before an investigation is commenced.” State v. James, 88 Wn.App. 812, 817, 946 P.2d 1205 (1997). See WPIC 115.53 (Intimidating a Witness—Current or Prospective Witness—Definition). It is not necessary to intend that the threat be actually communicated to the victim. State v. Anderson, 111 Wn.App. 317, 44 P.3d 857 (2002). However, the defendant must communicate the threat to someone. State v. Ozuna, 184 Wn.2d 238, 359 P.3d 739 (2015). The court held that a threat uttered or written in private, and not communicated to either the victim or a third-party, was not a violation of the statute.

The Supreme Court found in felony harassment cases that to be a “true” threat, a statement or act must occur in a context or under such circumstances where a reasonable person would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat. See State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004); see also State v. J.M., 144 Wn.2d 472, 481–82, 28 P.3d 720 (2001). In State v. King, 135 Wn.App. 662, 145 P.3d 1224 (2006), Division III of the Court of Appeals found that the witness intimidation statute by its very language encompasses “true threats,” so it was not necessary to further define “threat” for the jury. See also State v. Clark, 175 Wn.App. 109, 302 P.3d 553 (2013). The issue resurfaced in a Division II case involving intimidating a judge. The court did not reach the instructional issue but reiterated the requirement of a “true threat.” State v. Brown, 137 Wn.App. 587, 154 P.3d 302 (2007).

The statute's subsections are alternative means of committing the crime. State v. Chino, 117 Wn.App. 531, 72 P.3d 256 (2003) (reversal when alternatives set forth in information did not match alternatives offered in jury instruction). In State v. Boiko, 131 Wn.App. 595, 128 P.3d 143 (2006), the court rejected the State's argument that the statute proscribes one crime and the subsections merely identify the different states of mind to be established. See also State v. Savaria, 82 Wn.App. 832, 919 P.2d 1263 (1996) (in absence of election by the State as to the alternative means charged, unanimity instruction should have been given), overruled on other grounds by State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003).

In 2011, the Legislature amended the statute to provide that “each instance of an attempt to intimidate a witness constitutes a separate offense,” abrograting State v. Hall, 168 Wn.2d 726, 230 P.3d 1048 (2010). RCW 9A.72.110(5).